March 4, 1998
Preston P. Pate, Jr., Director Division of Marine Fisheries
P.O. Box 769 Morehead City, North Carolina 28557-0769
Re: Advisory Opinion: Exchange of Fish for Tournament Raffle Tickets is a Sale Requiring an Endorsement to Sell Fish; N.C.G.S. § 113-130
Dear Mr. Pate:
You have requested written advice on whether a person’s participation in a fishing tournament can constitute a sale of fish. This memorandum addresses whether various tournament practices are "sales," as this term is defined in the General Statutes.
In general, fishing tournaments are organized fishing events of limited duration, e.g., one week, in which individuals pay a registration fee to participate. The participants catch fish and bring them back to the tournament. Specific tournament practices vary. Some tournaments may offer cash prizes for the largest fish caught. Some may give each registered participant a raffle ticket and then hold drawings for valuable prizes from the pool of raffle tickets. Some tournaments may offer a raffle ticket in exchange for each fish submitted by the tournament participants. Tournaments generally sell the fish received.
Whether any of these schemes constitutes a "sale" depends on the definition of the term "sale."
N.C.G.S. § 113-130 defines "sale" as follows:
"The following definitions and their cognates apply to activities of the public in regard to marine and estuarine and wildlife resources: . . . (6) To Sell; Sale. — Includes a sale or exchange of property, or an offer or attempt to sell or exchange — for money or any other valuable consideration."
Under this definition, any tournament scheme which involves an exchange of property, money, or any other valuable consideration is a sale. Each scheme must be evaluated to determine whether it is a sale.
Under the referenced statute, a scheme in which a fisherman exchanges each fish for a raffle ticket qualifies as an exchange of property for valuable consideration. The fisherman receives more raffle tickets if he submits more fish, meaning he has an increased chance to win the prizes. This increased chance of winning constitutes valuable consideration. The transaction is therefore a sale under N.C.G.S. § 113-130. The tournament is essentially purchasing the fish from the fisherman in exchange for something of value.
A raffle scheme in which all entrants receive an equal number of raffle tickets regardless of the number of fish submitted would not be a sale transaction, since fish are not "exchanged" for a better chance at receiving a valuable prize.
Additionally, rewarding a cash prize for the largest fish or other achievement is not a sale transaction. In such a case, the cash prize is a reward for the achievement. Unlike the raffle situation, the winning fish are not "exchanged" for the prize money. Even when the tournament keeps and sells the fish, it cannot be said that the money was used to purchase the fish.
Our statutes require that any person taking or landing fish for sale must have an endorsement to sell fish: "[I]t is unlawful for any person who takes or lands any species of fish . . . from coastal fishing waters . . . to sell, offer for sale, barter or exchange for merchandise such fish, without having first procured a current and valid endorsement to sell fish." N.C.G.S. § 113-154.1. Therefore, under existing law, tournament participants who exchange fish for something of value must use a vessel with a valid endorsement to sell fish.
Thank you for your inquiry. Please advise us if we can be of further assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
Amy R. Gillespie
Assistant Attorney General